Mancia v. State

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SUPREME COURT OF ARKANSAS

No. CR-11-556

CRISTOBAL ANTONIO MANCIA Opinion Delivered March 19, 2015

APPELLANT

APPEAL FROM THE BENTON

V. COUNTY CIRCUIT COURT

[NO. CR-2007-802-1]

STATE OF ARKANSAS HONORABLE ROBIN FROMAN

APPELLEE GREEN, JUDGE

AFFIRMED.

KAREN R. BAKER, Associate Justice

On March 7, 2008, appellant, Cristobal Antonio Mancia, pleaded guilty to rape and

was sentenced to a term of life imprisonment. Pursuant to Arkansas Supreme Court Rule 4-

3(k) (2010), Mancia filed a brief on appeal asserting that there was no meritorious basis for his

appeal. We agreed and affirmed Mancia’s conviction and held:

Although counsel indicates in his brief that there was no applicable exception

to the general rule that there is no right to appeal from a plea of guilty, an appeal may

be taken after a guilty plea when it alleges evidentiary errors which arose after the plea

and during the sentencing phase. Johnson v. State, 2010 Ark. 63. In this case, the plea

was entered without benefit of a plea agreement, and appellant was provided a hearing

for sentencing purposes. Counsel asserts that there were no adverse rulings, however,

and our review of the record confirms that there were no objections to the evidence

presented to the court. See Ark. Sup.Ct. R. 4–3(i) (2009). Consequentially, there

were no adverse rulings so as to merit an appeal.

Mancia v. State, 2010 Ark. 247, at 1 (per curiam).

On July 19, 2010, pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure

(2010), Mancia filed a petition for postconviction relief alleging eight grounds for relief. On

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February 7, 2011, without holding a hearing, the circuit court denied Mancia’s petition.

On May 31, 2011, Mancia’s attorney, Dana Reece, lodged an appeal from that

decision on behalf of Mancia. Mancia v. State, 2014 Ark. 206 (per curiam). Mancia’s brief,

after a final extension, was due on August 25, 2011. Id. On October 5, 2011, the State filed

a motion to dismiss because no brief had been filed. Id. This court granted the State’s motion

on October 27, 2011. Id. Upon receiving the order of dismissal, Mancia filed a motion to

reconsider dismissal and reinstate appeal on November 4, 2011. Id. After finding that Reece

was at fault for failing to file the brief, this court granted Mancia’s motion. Mancia v. State,

2011 Ark. 507 (per curiam). On December 1, 2011, Reece filed a brief on Mancia’s behalf.

Id. Thereafter, on April 24, 2012, the Arkansas Supreme Court Committee on Professional

Conduct suspended Reece for thirty-six months from representing clients before the Arkansas

Supreme Court and Arkansas Court of Appeals. Id.

On February 6, 2014, because of abstract deficiencies in the brief that had been filed

by Reece, we ordered rebriefing in this appeal. Mancia v. State, 2014 Ark. 55 (per curiam).

On February 6, 2014, we notified Mancia, at the Arkansas Department of Correction, of our

per curiam, and provided him with a copy. On July 1, 2014, Mancia filed a substituted brief

and on July 24, 2014, the State timely responded.

From the circuit court’s February 7, 2011 order denying Mancia’s Rule 37.1 petition,

Mancia appeals and contends that the circuit court erred in denying his petition on the

following grounds: (1) the circuit court erred in denying Mancia’s Rule 37 petition because

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defense counsel was ineffective on eight separate grounds;1 (2) the circuit court erred because

it did not hold an evidentiary hearing; (3) pursuant to Martinez v. Ryan, 132 S. Ct. 1309

(2012) and Trevino v. Thaler, 133 S. Ct. 1911 (2013), Mancia is entitled to a new Rule 37

proceeding and appointed counsel because his previous Rule 37 counsel was constitutionally

ineffective.

In turning to the merits, the circuit court did not hold an evidentiary hearing. Rule

37.3 of the Arkansas Rules of Criminal Procedure provides that an evidentiary hearing should

be held in a postconviction proceeding unless the files and record of the case conclusively

show that the prisoner is entitled to no relief. Wooten v. State, 338 Ark. 691, 1 S.W.3d 8

(1999) (citing Bohanan v. State, 327 Ark. 507, 939 S.W.2d 832 (1997) (per curiam)). If the

files and the record show that the petitioner is not entitled to relief, the circuit court is

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Mancia asserts that the circuit court’s order must be reversed on the following eight

separate grounds:

1. Defense counsel was ineffective because he was intoxicated.

2. Defense counsel was ineffective because counsel did not investigate the victim’s

statement to the police.

3. Defense counsel was ineffective because counsel did not investigate or move

to suppress Mancia’s statement and did not secure an interpreter.

4. Defense counsel was ineffective because counsel did not inform Mancia of the

accurate minimum sentence.

5. Defense counsel was ineffective because counsel failed to secure a set sentence

in the plea deal.

6. Defense counsel was ineffective because counsel did not have an interpreter

present at all conversations he had with Mancia.

7. Defense counsel was ineffective because counsel did not have an interpreter

present during all court proceedings held in the case.

8. Defense counsel was ineffective because he did not inform Mancia that he was

giving up his right to appeal by pleading guilty.

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required to make written findings to that effect. Ark. R. Crim. P. 37.3(a).

“On appeal from a trial court’s ruling on a petitioner’s request for Rule 37 relief, this

court will not reverse the trial court’s decision granting or denying postconviction relief

unless it is clearly erroneous. Kemp v. State, 347 Ark. 52, 55, 60 S.W.3d 404, 406 (2001). A

finding is clearly erroneous when, although there is evidence to support it, the appellate

court after reviewing the entire evidence is left with the definite and firm conviction that a

mistake has been committed. Id.” Prater v. State, 2012 Ark. 164, at 8, 402 S.W.3d 68, 74.

“The benchmark for judging a claim of ineffective assistance of counsel must be

‘whether counsel’s conduct so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just result.’ Strickland [v. Washington,

466 U.S. 668, (1984)].” Henington v. State, 2012 Ark. 181, at 3-4, 403 S.W.3d 55, 58.

Pursuant to Strickland, we assess the effectiveness of counsel under a two-prong standard.

First, a petitioner raising a claim of ineffective assistance must show that counsel made errors

so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the

Sixth Amendment to the United States Constitution. Williams v. State, 369 Ark. 104, 251

S.W.3d 290 (2007). A petitioner making an ineffective-assistance-of-counsel claim must

show that his counsel’s performance fell below an objective standard of reasonableness.

Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). A court must indulge in a

strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance. Id.

Second, the petitioner must show that counsel’s deficient performance so prejudiced

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petitioner’s defense that he was deprived of a fair trial. Id. The petitioner must show there

is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a

reasonable doubt respecting guilt, i.e., the decision reached would have been different absent

the errors. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). A reasonable probability

is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless a

petitioner makes both showings, it cannot be said that the conviction resulted from a

breakdown in the adversarial process that renders the result unreliable. Id. Additionally,

conclusory statements that counsel was ineffective cannot be the basis of postconviction

relief. Anderson v. State, 2011 Ark. 488, at 5, 385 S.W.3d 783.

Finally, “the rule for evaluating ineffective-assistance-of-counsel claims in cases

involving guilty pleas appears in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203

(1985). In that case, the Supreme Court held that the ‘cause and prejudice’ test of Strickland

v. Washington, 466 U.S. 668 (1984), applied to challenges to guilty pleas based on ineffective

assistance of counsel. The Court further held that in order to show prejudice in the context

of a guilty plea, the petitioner must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.

Hill v. Lockhart, 474 U.S. at 59, 106 S.Ct. 366.” Buchheit v. State, 339 Ark. 481, 484, 6

S.W.3d 109, 111 (1999) (per curiam).

I. Ineffective Assistance of Counsel

With this standard in mind, we now turn to the issues raised by Mancia. Mancia

asserts that the circuit court erred with regard to eight separate grounds of relief on his

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ineffective-assistance-of-counsel argument.

A. Intoxication

First, Mancia asserts that the circuit court erred in denying his claim that he received

ineffective assistance of counsel and his guilty plea is invalid because his defense counsel was

intoxicated and suffered from alcoholism. Mancia contends in his Rule 37 petition that he

made a specific factual allegation that his attorney was under the influence of alcohol during

his representation “and even worse while in the courtroom . . . during Mancia’s

proceedings” and witnesses would be called to substantiate his claims.

The circuit court denied Mancia’s claim and explained:

Petitioner’s allegation that his attorney appeared before the Court intoxicated and that

he suffered from alcoholism is unsubstantiated and unsupported by the record. As

such, it is a conclusory allegation. The Petitioner must do more than make a

conclusory allegation unsupported by facts. Nance v. State, 339 Ark. 192, 4 S.W.3d

501 (1999); Bryant v. State, 323 Ark. 130, 913 S.W.2d 257 (1996). A claim that

prejudice was suffered without any factual explanation about what form the prejudice

took or how serious it was is not enough to prove ineffective assistance of counsel.

Spivey v. State, 299 Ark. 412, 773 S.W.2d 446 (1989). This allegation is denied and

no hearing on it is required.

Mancia contends that the circuit court erred because he made factual allegations

regarding his defense counsel’s intoxication that would be substantiated if Mancia were

afforded a hearing. Further, Mancia asserts that the circuit court’s finding that Mancia’s claim

is “unsupported by the record” is the wrong standard to be applied, alleging that it was the

circuit court’s duty to hold an evidentiary hearing unless “the files and the record

conclusively show that Mancia is not entitled to relief.”

The State responds that nothing in the record suggests that defense counsel was

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intoxicated; neither the judge, the prosecutor, Mancia or anyone else present at the hearing

ever indicated that defense counsel was impaired. In sum, the State contends that the record

does not demonstrate any behavior, actions, or inactions of counsel to suggest that defense

counsel was impaired. The State also contends that Mancia mistakenly relies on Lee v. State,

367 Ark. 84, 238 S.W.3d (2006) where we granted Lee’s motion to recall the mandate due

to his counsel’s impairment that was reflected in the record by numerous, specific examples

of counsel’s inability to defend his client during the course of the Rule 37 hearing and his

counsel’s admission that he suffered from problems with alcohol. However, the State asserts

that in Lee, the record was replete with examples of counsel’s erratic behavior; however,

here, in Mancia’s case, the record is void of any evidence to support Mancia’s allegation.

Finally, the State responds that Mancia has failed to identify any witness or identify what his

or her testimony would be to support his claim. The State urges us to affirm the circuit

court, asserting that Mancia bears the burden to provide facts that affirmatively support his

Rule 37.1 claims and has failed to do so.

Here, the record demonstrates that defense counsel acted in an appropriate manner

and there is nothing in the record to suggest defense counsel was intoxicated. During the

plea, the following colloquy occurred between defense counsel, the circuit court and Mancia:

THE COURT: Now, Mr -- I assume [defense counsel] has explained to

you that in your case that the -- that the minimum

penalty, as I understand it, is 25 years.

DEFENSE COUNSEL: That’s what I understand, Judge.

THE COURT: Has [defense counsel] explained that to you?

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DEFENDANT MANCIA: Yeah, he tell me that.

....

THE COURT: I know you signed off, but I’m going to --I’m asking you

on the record, do you dispute those facts [in the agreed

statement of facts]?

DEFENDANT MANCIA: That mean I’m guilty, right?

THE COURT: What did he say?

DEFENSE COUNSEL: He asked -- he agreed with that. He says yes.

THE COURT: All right.

Does that mean that you agree this is a correct statement

of the facts?

DEFENDANT MANCIA: Yes, sir.

...

Additionally, in reviewing the entire fifteen-page plea hearing, the record is absent any

indication that Mancia’s defense counsel was intoxicated. Although Mancia asserts the

conclusion that counsel was ineffective and his guilty plea is invalid because defense counsel

was intoxicated, the record simply does not support this position. Further, Mancia fails to

offer specific facts to support his conclusion or identify witnesses or provide a summary of

the proposed testimony. Where a petitioner alleges ineffective assistance of counsel

concerning the failure to call witnesses, it is incumbent on the petitioner to name the witness,

provide a summary of the testimony, and establish that the testimony would have been

admissible into evidence. Moten v. State, 2013 Ark. 503; Stevenson v. State, 2013 Ark. 302 (per

curiam) (citing Hogan v. State, 2013 Ark. 223 (per curiam)). Mancia was required to establish

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that there was a reasonable probability that, had counsel performed further investigation and

presented the witness, the outcome of the trial would have been different. See Carter v. State,

2010 Ark. 231. Accordingly, Mancia has failed to demonstrate that the circuit court erred

in its denial of his claim of ineffective assistance of counsel on this first point.

Finally, with regard to his claim that he was entitled to an evidentiary hearing and that

the “wrong standard” was applied, we do not find merit in this argument. Mancia’s entire

argument in his Rule 37 petition was as follows:

[Mancia] was denied his right to effective assistance of counsel . . . by trial counsel

being intoxicated at the hearings and suffering from alcohol abuse, thereby impairing

his judgment and ability to function as Defendant’s counsel. Lee v. State, 367 Ark. 84,

238 S.W.3d 52 (2006) (counsel cannot be qualified to represent a client while suffering

from an alcohol problem).

The circuit court held that, Mancia’s claim that his “attorney appeared before the

Court intoxicated and that he suffered from alcoholism is unsubstantiated and unsupported

by the record. . . . This allegation is denied and no hearing on it is required.”

Here, the circuit court’s findings are sufficient to specify the basis for its ruling. Also,

“the circuit court need not hold an evidentiary hearing where it can be conclusively shown

on the record, or the face of the petition itself, that the allegations have no merit.” Bienemy

v. State, 2011 Ark. 320, at 5. Again, simply put, the record lacks any evidence of impairment.

In sum, Mancia must show that counsel performed deficiently and that Mancia suffered

severe prejudice as a result of counsel’s error that he was deprived of a fair trial. Mancia has

failed to meet the standard under Strickland and we affirm the circuit court on this first point.

B. Defense Counsel Capitalize Was Ineffective for Failing to Investigate the

Victim’s Statement Before Advising Mancia to Plead Guilty

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For his second claim, Mancia asserts that the circuit court erred by denying his claim

that he received ineffective assistance of counsel when his defense counsel failed to investigate

the victim’s statement before advising Mancia to plead guilty. Mancia contends that his guilty

plea is invalid because if his defense counsel had investigated the victim’s statement further,

defense counsel would have realized that the victim’s statement “was not as damaging to

Mancia’s defense as Mancia’s counsel ultimately led Mancia to believe.” Mancia also asserts

that because the victim did not speak English and the officers who took the statement did not

speak Spanish, “it would be very easy for the victim’s statement to be interpreted incorrectly.”

Mancia contends that the circuit court’s finding that Mancia waived this claim when he

decided to plead guilty is erroneous because his plea was not “knowing and intelligent”

because he was advised to plead guilty based on false information.

The State responds that Mancia’s argument is without merit because Mancia pleaded

guilty after hearing the prosecutor describe what Mancia was alleged to have done. Mancia

made a full admission that he raped the victim. The State further responds that although

Mancia alleges that he pleaded guilty based on his attorney’s alleged deficient performance,

he has failed to demonstrate that his attorney’s performance had any impact on his plea.

The circuit court denied Mancia’s claim in its February 7, 2011 order and held:

Petitioner’s allegation that Mr. Bennett failed to properly investigate the

statement of the victim is insufficient to merit relief under Rule 37. When a Rule 37

Petition challenges a guilty plea, the Arkansas Supreme Court has ruled that the sole

issue to be decided by the court is whether the plea was intelligently and voluntarily

entered with the advice of competent counsel. Williams v. State, 273 Ark. 371, 620

S.W.2d 277 (1981). If Petitioner questioned the validity of the victim’s statement, he

could have exercised his right to cross-examine her at a jury trial. By choosing to

enter a guilty plea, Petitioner knowingly and intelligently waived his right to do so.

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This allegation is denied and no hearing on it is required.

In reviewing the circuit court’s order on Mancia’s claim that the circuit court erred in

denying his claim regarding the investigation of the victim’s statement, we note that the

circuit court cited the correct standard, “on appeal from the denial of a Rule 37 petition

following pleas of guilty there are only two issues for review—one, whether the plea of guilty

was intelligently and voluntarily entered, two, were the pleas made on the advice of

competent counsel.” Branham v. State, 292 Ark. 355, 356, 730 S.W.2d 226, 227 (1987).

Here, based on the record before us, and applying Strickland and its progeny, Mancia does not

allege that, but for defense counsel’s failure to investigate, he would not have pled guilty.

Additionally, we note that “an appellant who has pleaded guilty normally will have

considerable difficulty in proving any prejudice as the plea rests upon an admission in open

court that the appellant did the act charged.” Jamett v. State, 2010 Ark. 28, 358 S.W.3d 874

(per curiam). Here, Mancia must allege some direct correlation between counsel’s deficient

performance and the decision to enter the plea, or the petitioner is procedurally barred from

postconviction relief. See Polivka v. State, 2010 Ark. 152, 362 S.W.3d 918. Conclusory

statements to that effect, without an alleged factual basis, do not suffice.

Under the Strickland test, Mancia must demonstrate both that counsel’s performance

fell below an objective standard of reasonableness and that counsel’s deficient performance

prejudiced his defense to such an extent that the petitioner was deprived of a fair trial. “To

establish prejudice and prove that he was deprived of a fair trial due to ineffective assistance

of counsel, an appellant who has [pleaded] guilty must demonstrate a reasonable probability

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that, but for counsel’s errors, he would not have so pleaded and would have insisted on going

to trial. Buchheit v. State, 339 Ark. 481, 6 S.W.3d 109 (1999) (per curiam) (citing Hill v.

Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).” Olivarez v. State, 2012 Ark.

24, at 4 (per curiam). Bare assertions of ineffectiveness are not enough. Conclusory statements

that counsel was ineffective will not sustain a Rule 37 petition. Anderson, 2011 Ark. 488, at

5. Mancia has failed to meet this standard and we affirm the circuit court.

C. Defense Counsel Was Ineffective for Failing to Investigate

Statements Made by Mancia Prior to Mancia’s Guilty Plea and

For Failing to File a Motion to Suppress Mancia’s Statements

For his third claim, Mancia asserts that the circuit court erred in rejecting Mancia’s

claim that counsel was ineffective for failing to investigate the statements supposedly made by

Mancia prior to the entry of Mancia’s guilty plea and for failing to make a motion to suppress

Mancia’s statements “based on the fact that Mancia’s use of the English language was

extremely limited.” Mancia contends that it is clear from the record that Mancia had only

a second grade education and his English language was limited, the circuit court “did virtually

all of the talking,” Mancia “barely said anything more than ‘yes sir.’” Therefore, Mancia

concludes that the circuit court erred and his plea was not made knowingly and intelligently.

The State responds that the record demonstrates that Mancia has lived in the United

States since 1993, Mancia indicated that he understood what he was being told, Mancia

responded to questions with appropriate statements and complete answers and never stated

he did not understand or was confused or anything to suggest that he did not understand the

proceedings.

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In its February 7, 2011 order, the circuit court denied Mancia’s claim and held:

Petitioner’s allegation that Mr. Bennett was ineffective because he failed to properly

investigate Petitioner’s statement to law enforcement due to Petitioner’s limited

knowledge of English is not entitled to relief under Rule 37. This allegation fails

because it is contradicted by the record. While Petitioner claims to have a limited

knowledge of the English language, the record indicates that he never displayed any

such impairment before the Court. In fact, Petitioner engaged in a lengthy discussion

with the Court without the aid of an interpreter and made no request for an

interpreter. (Tr. pages 9- 23). Since the record demonstrates that Petitioner

understands and speaks English, this allegation does not affect the voluntary and

intelligent nature of his guilty plea. This allegation is denied and no hearing on it is

required.

Here, we agree with the State’s position. The record fails to demonstrate that Mancia

did not understand the proceedings, that he needed an interpreter and that his defense counsel

was deficient in his representation in this regard. The record demonstrates that Mancia

understood the proceedings and communications. The record also demonstrates that on

February 1, 2008, in preparation for Mancia’s jury trial set for February 5, 2008, defense

counsel requested an interpreter. Mancia decided to plead guilty, and the trial did not occur.

However, at the plea hearing on February 4, 2008, nothing in the record demonstrates that

Mancia needed or requested the use of an interpreter during the plea hearing that he

complains about.

Again, based on Strickland, Mancia must demonstrate both that counsel’s performance

fell below an objective standard of reasonableness and that counsel’s deficient performance

prejudiced his defense to such an extent that the petitioner was deprived of a fair trial. “To

establish prejudice and prove that he was deprived of a fair trial due to ineffective assistance

of counsel, an appellant who has [pleaded] guilty must demonstrate a reasonable probability

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that, but for counsel’s errors, he would not have so pleaded and would have insisted on going

to trial. Buchheit v. State, 339 Ark. 481, 6 S.W.3d 109 (1999) (per curiam) (citing Hill v.

Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).” Olivarez, 2012 Ark. 24, at

4 (per curiam). Bare assertions of ineffectiveness are not enough and conclusory statements

that counsel was ineffective will not sustain a Rule 37 petition. Anderson, 2011 Ark. 488, at

5. Further, Mancia has not alleged that he suffered prejudice. Mancia has failed to meet this

standard and we affirm the circuit court.

D. Defense Counsel was Ineffective for Misadvising Mancia

Regarding the Range of Punishment

Fourth, Mancia asserts that the circuit court erred in denying his claim that defense

counsel was ineffective for “misadvising Mancia regarding the range of punishment that

applied to him.” Relying on the “Defendant’s Statement,” Mancia contends that defense

counsel negligently advised him that the minimum sentence for rape was ten years when the

minimum sentence was actually twenty-five years. Mancia contends that the circuit court

erred because “the record clearly reflects that it was Mancia’s belief, at the time that he signed

the ‘Defendant’s Statement’ and agreed to plead guilty the minimum punishment that he was

facing was only ten (10) years in prison.”

The State responds that although Mancia signed the “Defendant’s Statement” the day

of his plea and the statement erroneously stated that ten years was the minimum sentence, this

error is negated by the record. The State contends that the record demonstrates that Mancia

clearly understood that the minimum sentence was twenty-five years.

At issue is the circuit court’s order denying Mancia’s claim:

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Petitioner’s allegation that his attorney was ineffective because Petitioner was not

advised of the minimum penalty for his crime is contradicted by the record. Before the

acceptance of Petitioner’s guilty plea, the deputy prosecuting attorney stated on the

record that the penalty range for Petitioner’s crime was a minimum of twenty-five

(25) years up to a maximum sentence of life in prison. It is worth noting that

Petitioner’s “Defendant’s Statement” incorrectly states that the minimum sentence for

the rape of a child under the age of fourteen (14) is ten (10) years, the minimum

sentence for an adult rape conviction. The Court is satisfied that the record

demonstrates that this scrivener’s error is substantially outweighed by the public

statement on the record and in open court of the correct minimum sentence of

twenty-five (25) years before the acceptance of Petitioner’s guilty plea. The record

shows that Petitioner entered his plea with the understanding that his guilty plea

constituted a waiver of his right to appeal the conviction. This allegation is denied and

no hearing on it is required.

Mancia asserts that the circuit court trivialized the “10 years” error on the “Defendant’s

Statement” and the fact that the circuit court correctly explained the minimum punishment

at the plea hearing does not cure the error.

However, we disagree. Despite the error on “Defendant’s Statement,” the record

demonstrates that Mancia was advised multiple times of the proper sentence:

THE COURT: Well, let’s say that the law says – and this is

hypothetical, but if the law says that in a particular

case a person could be sentenced to 10 to 40 years,

or life, the Court could choose to sentence a

person to 10 years, 20 years, 30 years, 40 years, or

life. Any – whatever the Court feels is

appropriate. Do you understand that?

DEFENDANT MANCIA: Yes, sir.

THE COURT: Now, . . . - - I assume [defense counsel] has

explained to you that in your case that the – that

the minimum penalty, as I understand it, is 25

years.

DEFENSE COUNSEL: That’s what I understand, Judge.

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THE COURT: Has [defense counsel] explained that to you?

DEFENDANT MANCIA: Yeah, he tell me that.

THE COURT: Well, do you understand that the Court can

sentence you to 25 years or - - or more, up to the

maximum? Do you understand that?

DEFENDANT MANCIA: Yes, sir.

....

THE COURT: Has anyone said to you well, you know, if you’ll

plead guilty Judge Keith won’t give you more

than 25 years, that’s the minimum. Has anyone

said that?

DEFENDANT MANCIA: No.

(Emphasis added.)

Here, the record demonstrates that Mancia was informed and aware of the twenty-five

year minimum sentence prior to the entry of his guilty plea. We also note that Mancia does

not assert that but for the alleged error he would not have pled guilty or that his guilty plea

was premised on his belief that the minimum sentence was ten years.

Again, based on Strickland, Mancia must demonstrate both that counsel’s performance

fell below an objective standard of reasonableness and that counsel’s deficient performance

prejudiced his defense to such an extent that the petitioner was deprived of a fair trial. “To

establish prejudice and prove that he was deprived of a fair trial due to ineffective assistance

of counsel, an appellant who has [pleaded] guilty must demonstrate a reasonable probability

that, but for counsel’s errors, he would not have so pleaded and would have insisted on going

to trial. Buchheit v. State, 339 Ark. 481, 6 S.W.3d 109 (1999) (per curiam) (citing Hill v.

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Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).” Olivarez, 2012 Ark. 24, at

4 (per curiam). Mancia has failed to meet this standard and the record does not support his

position. We affirm the circuit court on this point.

E. Defense Counsel was Ineffective for Failing to Attempt to Negotiate

with the State for a Sentence of Less than Life in Prison

Fifth, Mancia asserts that the circuit court erred in denying his claim that his defense

counsel was ineffective when defense counsel failed to attempt to negotiate with the State for

a sentence of less than life in prison. Mancia concludes that if defense counsel had negotiated

with the State, it is reasonably probable that the State would have extended an offer to allow

Mancia to plea to a term of years.

The State responds that the record demonstrates that Mancia pled guilty,

acknowledged that there was not a plea agreement with the State, and Mancia subjected

himself to sentencing by the court. The State further responds that Mancia’s position that the

record demonstrates that the prosecutor would have supported a sentence less than life is not

supported by the record.

The circuit court held that

Petitioner’s allegation that he was denied effective assistance of counsel because his

attorney failed to pursue a favorable plea agreement with the State is not eligible for

relief under Rule 37. If Petitioner was unhappy with a plea to the Court, he could

have exercised his right to a jury trial. Since he chose to enter a guilty plea to the

Court, the only relevant issue is whether he entered his plea voluntarily and

intelligently with the advice of competent counsel. Because this allegation does not

affect the voluntary and intelligent nature of Petitioner’s plea, it is insufficient to merit

relief under Rule 37. This allegation is denied and no hearing on it is required.

Here, in reviewing the record, the record demonstrates that the following colloquy

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occurred regarding Mancia’s plea:

THE COURT: Okay. After you have found out what you’re charged

with, what the State has to prove for you to be found

guilty, what evidence the State has in order to prove its

case against you and that the penalties are, after you have

all of that, then you can make a decision on whether or

not you should plead guilty, and you need to have all of

that in order to make that decision.

Do you have all of that Mr. Mancia?

DEFENDANT MANCIA: Yes, sir.

....

THE COURT: Mancia. This is a plea to the Court; that is, you don’t

have a plea bargain with the State, Mr. Mancia. Do you

understand that?

DEFENDANT MANCIA: Yes, Sir.

Here, the record demonstrates that Mancia was aware that he had not received a plea

bargain from the State. When a defendant pleads guilty, the only claims cognizable in a

proceeding pursuant to Rule 37.1 are those that allege that the plea was not made voluntarily

and intelligently or that it was entered without effective assistance of counsel. See Gonder v.

State, 2011 Ark. 248 (per curiam); Jamett v. State, 2010 Ark. 28 (per curiam). The record

demonstrates that Mancia knowingly and intelligently entered into the plea agreement.

Again, based on Strickland, Mancia must demonstrate both that counsel’s performance

fell below an objective standard of reasonableness and that counsel's deficient performance

prejudiced his defense to such an extent that the petitioner was deprived of a fair trial. “To

establish prejudice and prove that he was deprived of a fair trial due to ineffective assistance

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of counsel, an appellant who has [pleaded] guilty must demonstrate a reasonable probability

that, but for counsel’s errors, he would not have so pleaded and would have insisted on going

to trial. Buchheit v. State, 339 Ark. 481, 6 S.W.3d 109 (1999) (per curiam) (citing Hill v.

Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).” Olivarez, 2012 Ark. 24, at

4 (per curiam). Mancia has failed to meet this standard and the record does not support

Mancia’s argument. We affirm on this point.

F. Defense Counsel Was Ineffective for Failing to Ensure a Translator Was

Present for all Conversations With Mancia to Ensure Mancia

Fully Understood the Evidence Against Him and Potential Sentence

Sixth, Mancia asserts that the circuit court erred in denying his claim that his defense

counsel was ineffective for failing to ensure an interpreter was present during all conversations

with Mancia to ensure Mancia understood the evidence against him and the sentence if he

pled guilty. Mancia contends that the transcript does not support the circuit court’s finding

that Mancia could speak and understand English. Mancia contends that the record

demonstrates that the trial judge and the court reporter both had trouble understanding

Mancia’s answers. Finally, Mancia asserts that the circuit court erred because Mancia has

raised a legitimate issue as to whether trial counsel owed a professional duty to obtain the

services of an interpreter to fully understand the proceedings and cooperate with counsel.

Mancia alleges that, based on the cold record, the circuit court could not have determined

that Mancia understood the proceedings.

The State responds that the record demonstrates that Mancia understood what he was

doing and that he knowingly and intelligently entered his plea with the knowledge that the

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court was sentencing him and that he could receive a sentence of life imprisonment. Further,

the State responds that Rule 37 is not a forum for Mancia to now contest the representations

that he made to the court during his plea agreement.

The circuit court denied Mancia’s claim and held:

Petitioner’s allegation that [defense counsel] was ineffective because he failed to ensure

the presence of an interpreter during Petitioner’s court appearances. As with the

previous allegation, the court transcript contradicts Petitioner’s assertion that he

struggled to speak and understand English.( Tr. pages 9-23 ). Since the record

demonstrates that Petitioner did not struggle to speak and understand English, this

allegation does not affect the voluntary and intelligent nature of Petitioner’s plea

of guilty. Therefore, this allegation is denied and no hearing on it is required.

Here, despite Mancia’s allegations, as discussed previously, a review of the record

demonstrates that Mancia understood the proceedings and communicated without hesitation.

Without citing to specific language, Mancia generally refers to the record as support.

However, the following colloquy occurred during the plea hearing:

THE COURT: [A]t the time you entered a plea of not guilty the Court

asked the State what is the status of the file. That – and

in . . .your case the State said the file is open, Judge.

What that means is that you, through your attorney, have

access to all the information about your case that the State

has; that is, any written reports, the statements of

witnesses, any tests that may have been performed, the

police reports, everything. And – and the reason that’s

important is that it puts you in a position, through your

attorney, to know what kind of evidence the State has

that it would introduce at trial to convince the jury of

your guilt.

Now, what I expect to have happened . . . that you have,

number one, told your attorney all you know about your

case; and if you have, raise your right hand.

[Mancia] hand raised.

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THE COURT: Okay. That’s important because it enables your attorney

to – to check and see if – if some of the things that are

being said or reported are accurate or if - - or what kind

of evidence the State may have, really to convince the

jury of your guilt.

Now, what I expect to happen is that you have discussed

with your attorney the evidence that the State has. And

if you’ve done that, if your attorney has talked to you

about what kind of evidence the State has, raise your

right hand.

[Mancia] hand raised.

THE COURT: Okay. I expect your attorney to have explained to you

what the State would have to prove in . . . your case[] on

each charge to - - to enable the jury to convict you or

find you guilty.

I’m going to say this again. I expect in . . . your case[]

that your attorney has explained to you what facts a jury

must have in order to find you guilty. And your attorney

has done that, raise your right hand.

[Mancia] hand raised.

THE COURT: Okay. And I expect your attorney to have explained to

you what the minimum and maximum penalties are in

the event you’re found guilty of any and all of these

charges. And if your attorney has done that, raise your

right hand.

[Mancia] hand raised.

THE COURT: Okay. After you have found out what you’re charged

with, what the State has to prove for you to be found

guilty, what evidence the State has in order to prove its

case against you and what the penalties are, after you have

all of that, then you can make a decision on whether or

not you should plead guilty, and you need to have all of

that in order to make that decision.

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Do you have all of that Mr. Mancia?

DEFENDANT MANCIA: Yes, sir.

Here, the record demonstrates that Mancia understood the proceedings. Further, as

noted in point three, although defense counsel had secured an interpreter, the record

demonstrates that Mancia understood the proceedings and did not request the use of the

interpreter. Mancia’s allegation does not affect the voluntary and intelligent nature of his plea.

Pursuant to Strickland, Mancia must demonstrate both that counsel’s performance fell below

an objective standard of reasonableness and that counsel’s deficient performance prejudiced

his defense to such an extent that the petitioner was deprived of a fair trial. “To establish

prejudice and prove that he was deprived of a fair trial due to ineffective assistance of counsel,

an appellant who has [pleaded] guilty must demonstrate a reasonable probability that, but for

counsel’s errors, he would not have so pleaded and would have insisted on going to trial.

Buchheit v. State, 339 Ark. 481, 6 S.W.3d 109 (1999) (per curiam) (citing Hill v. Lockhart, 474

U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).” Olivarez, 2012 Ark. 24, at 4. Mancia has

failed to meet this burden and we affirm the circuit court.

G. Defense Counsel was Ineffective for Failing to Ensure that a Translator was Present at

Every Hearing Where Mancia Could Fully Understand the Proceedings

Seventh, Mancia’s argument is the same argument addressed regarding the translator

in points three and six above regarding the translator. For those same reasons, we reject

Mancia’s seventh argument and find no clear error in the circuit court’s decision to deny relief

on his claim.

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H. Defense Counsel Was Ineffective for Failing to Inform Mancia

That Mancia Would Not Have the Right to

a Direct Appeal from His Guilty Plea

Eighth, Mancia asserts that the circuit court erred in denying his claim of ineffective

assistance of counsel regarding his claim that defense counsel was ineffective because the

circuit court did not advise Mancia that he was giving up his right to appeal by pleading

guilty. Mancia asserts that the circuit court’s handling of Mancia’s plea hearing was confusing

and the “explanation process was . . . slick . . . and seemingly designed to elicit a waiver from

Mancia without him even knowing he had done so.” Mancia also contends that the record

does not demonstrate that Mancia made a knowing, intelligent or voluntary decision to waive

his right to appeal and urges this court to reverse and remand the matter for an evidentiary

hearing to further develop this claim.

The State responds that Mancia does not assert that he would have insisted on going

to trial had he been informed. Further, the State responds that Rule 24 of the Arkansas Rules

of Criminal Procedure does not require the court to inform the defendant that he is giving

up his right to a direct appeal; thus, the circuit court did not err in denying his claim.

In its February 7, 2011 order denying Mancia’s Rule 37.1 petition, the circuit court

held:

Petitioner’s allegation that his attorney was ineffective because he failed to advise

Petitioner of appellate process is ineligible for relief under Rule 37. As with the

previous allegations, the court transcript demonstrates that Petitioner was advised that

his plea of guilty would constitute a waiver of his right to appeal. (Tr. pages 12- 13).

Since Petitioner knew this before he entered his plea of guilty, this allegation does not

affect the voluntary and intelligent nature of Petitioner’s plea. Therefore, this allegation

is denied and no hearing on it is required.

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The record demonstrates that the circuit court informed Mancia of his appellate rights:

THE COURT: If you’re found guilty you have an absolute right in

Arkansas to appeal to a higher court; and if you cannot

afford the cost of an appeal, then a free appeal will be

provided to you.

A free appeal includes a verbatim, word-for-word,

account, transcript, of your trial, and a transcript of your

trial is necessary to enable you to appeal and they cost

money. If you are indigent, can’t afford it, then a free

transcript would be provided to you to enable you to

appeal. Also the assistance of legal counsel would be

provided to you to enable you to appeal.

Now, if you understand these rights, raise your right hand.

[Mancia] hand raised.

....

THE COURT: If you’ve made a decision of your own will to give up these rights

and plead guilty, raise your right hand.

[Mancia] hand raised.

(Emphasis added.)

Accordingly, the record demonstrates that Mancia was informed of his appellate rights.

Mancia has made conclusory allegations with no factual support, and the record does not

support his argument. Therefore, we affirm the circuit court.

II. The Circuit Court Erred in Not Holding an Evidentiary Hearing

In addition to his eight claims of error regarding his ineffective assistance of counsel

claims, Mancia asserts that the circuit court also erred by not holding an evidentiary hearing

on his claims. Pursuant to Arkansas Rule of Criminal Procedure 37.3(a) (2011), the circuit

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court has the discretion to deny relief without a hearing. Stated differently, “the circuit court

need not hold an evidentiary hearing where it can be conclusively shown on the record, or

the face of the petition itself, that the allegations have no merit.” Bienemy v. State, 2011 Ark.

320, at 5.

Here, the files and record of Mancia’s case conclusively show that Mancia is not

entitled to relief. The circuit court reviewed the pleadings and transcripts in denying Mancia’s

petition for postconviction relief. In doing so, the circuit court outlined Mancia’s claims and

the reasons for its denial of those claims and cited to specific points in the record and

ultimately held: “Pursuant to Ark. R. Cr. P . Rule 37.3 (a), the files and records of the case

conclusively show that Petitioner is entitled to no relief. A hearing is not required.” Thus,

we conclude that the circuit court’s written findings complied with Rule 37.3 and the circuit

court applied the correct standard, that the files and record of Mancia’s case conclusively show

that Mancia is entitled to no relief. Accordingly, we affirm the circuit court’s denial of

Mancia’s request for postconviction relief.

We hold that the allegations in Mancia’s appeal are such that it is conclusive on the face

of the petition that no relief is warranted. As discussed at length above, many of Mancia’s

arguments are unsupported by evidence or authority, and are conclusive in nature. Therefore,

we affirm the circuit court’s denial of relief without an evidentiary hearing.

III. Pursuant to Martinez v. Ryan, 132 S. Ct. 1309 (2012) and

Trevino v. Thaler, 133 S.Ct. 1911 (2013): Mancia is Entitled to a Remand

and a New Rule 37 Proceeding Because His Previous Rule 37 Counsel Rendered

Ineffective Assistance of Counsel and He is Entitled to Appointment of New Counsel

For his final and alternative point on appeal, Mancia asserts that, pursuant to Martinez

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and Trevino, he is entitled to a remand of his Rule 37 case to the circuit court for renewed

proceedings on the ground that he received ineffective assistance of post-conviction counsel.

Additionally, Mancia asserts that his case compels the appointment of counsel. The State

responds that Martinez and Trevino are not applicable to Mancia’s case and this court has

rejected the argument that Martinez and Trevino require appointment of counsel. In Watson

v. State, 2014 Ark. 203, at 11, 444 S.W.3d 835, 843, we explained:

In March 2012, the United States Supreme Court decided Martinez, holding in part

that “when a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel

claim in a collateral proceeding, a prisoner may establish cause for a default of an

ineffective-assistance claim where the state courts did not appoint counsel in the

initial-review collateral proceeding for a claim of ineffective assistance at trial.”

Martinez, 132 S.Ct. at 1318. In other words, where state law bars a defendant from

raising claims of ineffective assistance of trial counsel on direct appeal, “a procedural

default will not bar a federal habeas court from hearing a substantial claim of ineffective

assistance at trial if, in the initial-review collateral proceeding, there was no counsel or

counsel in that proceeding was ineffective.” Id., 132 S.Ct. at 1320; see also Dansby v.

Norris, 682 F.3d 711, 729 (8th Cir.), adhered to on denial of reh’g sub nom. Dansby

v. Hobbs, 691 F.3d 934 (8th Cir. 2012). In 2013, the Supreme Court revisited the

procedural-default issue in Trevino and stated that the Martinez Court had read the

previous decision in Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d

640 (1991)“as containing an exception, allowing a federal habeas court to find “cause,”

thereby excusing a defendant’s procedural default, where (1) the claim of “ineffective

assistance of trial counsel” was a “substantial” claim; (2) the “cause” consisted of there

being “no counsel” or only “ineffective” counsel during the state collateral review

proceeding; (3) the state collateral review proceeding was the “initial” review

proceeding in respect to the “ineffective-assistance-of-trial-counsel claim”; and (4)

state law requires that an “ineffective assistance of trial counsel [claim] . . . be raised in

an initial-review collateral proceeding.” Trevino, ___ U.S. at ___, 133 S. Ct. at 1918

(alteration in original) (citing Martinez, ___ U.S. at ___, 132 S. Ct. at 1318–19,

1320–21). In Paige v. State, 2013 Ark. 432 (per curiam), this court briefly discussed the

holdings of Martinez and Trevino and commented that neither decision dictates that

counsel must be appointed on appeal in a postconviction proceeding. Be that as it

may, the issue Watson raises on appeal was not presented to the circuit court. In his

petition for postconviction relief, Watson made a general request for the appointment

of counsel. However, he did not argue, as he does on appeal, that the appointment of

counsel was required under the Martinez decision. As we have stated, we do not

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consider issues that are raised for the first time on appeal. Tornavacca v. State, 2012 Ark.

224, 408 S.W.3d 727.

Although we note that Mancia asserts that he did not present and could not have

presented, his argument in his Rule 37.1 petition because Martinez was not decided until the

following year, he claims that his claim falls within one of the Wicks exceptions. See Wicks

v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Specifically, he asserts that “defense counsel

[had] no knowledge of the error and hence no opportunity to object” because Martinez was

not handed down until after Mancia’s Rule 37.1 proceedings below had been concluded.

Even if Mancia had preserved this argument, we have held that this does not “dictate that

counsel must be appointed on appeal in a postconviction proceeding.” Accordingly, we deny

Mancia’s request for appointment of counsel and his request to remand for a new hearing.

Affirmed.

Dana A. Reece, for appellant.

Dustin McDaniel, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., and Brad

Newman, Ass’t Att’y Gen., for appellee.

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